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Attorneys
This is a background article. A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."Henry Campbell Black, Black's Law Dictionary, 5th ed. (St. Paul: West Publishing Co., 1979), 799. Law is the system of rules of conduct established by the government of a society to maintain stability and justice. Working as a lawyer represents the practical application of legal theory and knowledge to solve real problems or to advance the interests of those who retain (i.e., hire) lawyers for legal services. The role of the lawyer varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms.Geoffrey C. Hazard, Jr. & Angelo Dondi, Legal Ethics: A Comparative Study (Stanford: Stanford University Press, 2004), 20-23. More information is available in country-specific articles (see below). Terminology In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term "lawyer" may vary from place to place. * In Australia, the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel) but not people who do not practice the law. * In Britain, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practice it on behalf of individual clients, such as judges, court clerks, and drafters of legislation. * In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor". * In the United States of America, the term generally refers to attorneys who may practice law. * Other nations tend to have comparable terms for the analogous concept. Responsibilities In most countries, particularly civil law countries, there has been a tradition of giving many legal tasks to a variety of civil law notaries, clerks, and scriveners.Richard L. Abel, "Lawyers in the Civil Law World," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 1-53 (Berkeley: University of California Press, 1988), 4. These countries do not have "lawyers" in the American sense, insofar as that term refers to a single type of general-purpose legal services provider;Walter O. Reyrauch, The Personality of Lawyers (New Haven: Yale University Press, 1964), 27. rather, their legal professions consist of a large number of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.Jon T. Johnsen, "The Professionalization of Legal Counseling in Norway," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 54-123 (Berkeley: University of California Press, 1988), 91.Kahei Rokumoto, "The Present State of Japanese Practicing Attorneys: On the Way to Full Professionalization?" in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 160-199 (Berkeley: University of California Press, 1988), 164. It is difficult to formulate accurate generalizations that cover all the countries with multiple legal professions, because each country has traditionally had its own peculiar method of dividing up legal work among all its different types of legal professionals.Hazard, 21-33. Notably, England, the mother of the common law jurisdictions, emerged from the Dark Ages with similar complexity in its legal professions, but then evolved by the 19th century to a single dichotomy between barristers and solicitors. An equivalent dichotomy developed between advocates and procurators in some civil law countries, though these two types did not always monopolize the practice of law as much as barristers and solicitors, in that they always coexisted with civil law notaries.Benoit Bastard and Laura Cardia-Vonèche, "The Lawyers of Geneva: an Analysis of Change in the Legal Profession," trans. by Richard L. Abel, in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 295-335 (Berkeley: University of California Press, 1988), 297.Carlos Viladás Jene, "The Legal Profession in Spain: An Understudied but Booming Occupation," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 369-379 (Berkeley: University of California Press, 1988), 369.Vittorio Olgiati and Valerio Pocar, "The Italian Legal Profession: An Institutional Dilemma," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 336-368 (Berkeley: University of California Press, 1988), 338. Several countries that originally had two or more legal professions have since ''fused'' or united their professions into a single type of lawyer.Bastard, 299.Harry W. Arthurs, Richard Weisman, and Frederick H. Zemans, "Canadian Lawyers: A Peculiar Professionalism," in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 123-185 (Berkeley: University of California Press, 1988), 124.David Weisbrot, "The Australian Legal Profession: From Provincial Family Firms to Multinationals," in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 244-317 (Berkeley: University of California Press, 1988), 250. Georgina Murray, "New Zealand Lawyers: From Colonial GPs to the Servants of Capital," in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 318-368 (Berkeley: University of California Press, 1988), 324. Most countries in this category are common law countries, though France, a civil law country, merged together its jurists in 1990 and 1991 in response to Anglo-American competition.Anne Boigeol, "The Rise of Lawyers in France," in Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Pérez-Perdomo, 185-219 (Stanford: Stanford University Press, 2003), 208. In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below. Oral argument in the courts Arguing a client's case before a judge or jury in a court of law is the traditional province of the barrister in England. However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.Richard L. Abel, The Legal Profession in England and Wales (London: Basil Blackwell, 1989), 116. In countries like the United States that have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a de jure monopoly like barristers. In some countries, litigants have the option of arguing pro se, or on their own behalf. It is common for litigants to appear unrepresented before certain courts like small claims courts; indeed, many such courts do not allow lawyers to speak for their clients, in an effort to save money for all participants in a small case.See, e.g., Cal. Code. Civ. Proc. § 116.530 http://caselaw.lp.findlaw.com/cacodes/ccp/116.510-116.570.html (preventing attorneys from appearing in small claims court except as parties or witnesses). In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.Rogelio Pérez-Perdomo, "The Venezuelan Legal Profession: Lawyers in an Inegalitarian Society," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 380-399 (Berkeley: University of California Press, 1988), 387. The advantage of the latter regime is that lawyers are familiar with the court's customs and procedures, and make the legal system more efficient for all involved. Unrepresented parties often damage their own credibility or slow the court down as a result of their inexperience.Gordon Kent, "Lawyerless Litigants: Is Justice Being Served?" Edmonton Journal, 27 January 2002, A1.Alan Feuer, "Lawyering by Laymen: More Litigants Are Taking a Do-It-Yourself Tack," New York Times, 22 January 2001, B1. Research and drafting of court papers Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts and law while drafting legal papers and preparing for oral argument. In England, a solicitor gets the facts of the case from the client and briefs a barrister in writing. The barrister then researches, drafts, and files the necessary court pleadings, and orally argues the case.See Abel, England and Wales, 56 and 141. In Spain, the procurator merely signs and presents the papers to the court, but it is the advocate who drafts the papers and argues the case.Jene, 369. In some countries, like Japan, a scrivener or clerk may fill out court forms and draft simple papers for lay persons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases.Rokumoto, 164. Advocacy (written and oral) in administrative hearings In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law. In a few countries, there is a special category of jurists with a monopoly over this form of advocacy; for example, France formerly had conseil juridiques (who were merged into the main legal profession in 1991).Anne Boigeol, "The French Bar: The Difficulties of Unifying a Divided Profession," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 258-294 (Berkeley: University of California Press, 1988), 263; and Boigeol, "The Rise of Lawyers," 206. In other countries, like the United States, lawyers have been effectively barred by statute from certain types of administrative hearings in order to preserve their informality.Richard L. Abel, American Lawyers (New York: Oxford University Press, 1989), 132. See, e.g., Hines v. Lowrey, (upholding limitation on attorneys' fees in veterans' benefits cases to $10). Client intake and counseling (with regard to pending litigation) In England, only solicitors were traditionally in direct contact with the client. Abel, England and Wales, 1 and 141. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client. In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practising, at a court at which they normally appeared and at their usual rates.R.E. Megarry, Lawyer and Litigant in England (London: Stevens and Sons, 1962), 32.Maureen Paton, "Cab-rank exits," The Times, 9 October 2001, 1. This brief article explains the uneasy tension between solicitors and barristers, and the loopholes that have developed. For example, a barrister need not accept a case if the fee is too low or the barrister is just too busy. Legal advice (with regard to all legal matters) Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress.Arthurs, 125; Johnsen, 74; and Pérez-Perdomo, "Venezuelan Legal Profession," 387.Erhard Blankenburg and Ulrike Schultz, "German Advocates: A Highly Regulated Profession," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 124-159 (Berkeley: University of California Press, 1988), 124.Joaquim Falcão, "Lawyers in Brazil," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 400-442 (Berkeley: University of California Press, 1988), 401. Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law. In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it is irrelevant if they lack a license and cannot appear in court.Abel, England and Wales, 185; Bastard, 318.Kees Schuyt, "The Rise of Lawyers in the Dutch Welfare State," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 200-224 (Berkeley: University of California Press, 1988), 201. Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice. Sometimes civil law notaries are allowed to give legal advice, as in Belgium.Luc Huyse, "Legal Experts in Belgium," in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 225-257 (Berkeley: University of California Press, 1988), 227. In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.Murray, 325; and Rokumoto, 164. Protecting intellectual property In virtually all countries, patents, trademarks, industrial designs and other forms of intellectual property must be formally registered with a government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.Rokumoto, 164.Lee Rousso, "Japan's New Patent Attorney Law Breaches Barrier Between The 'Legal' And 'Quasi-Legal' Professions: Integrity Of Japanese Patent Practice At Risk?" 10 Pac. Rim L. & Pol'y 781, 783-790 (2001). Negotiating and drafting contracts In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above.Arthurs, 125; and Pérez-Perdomo, "Venezuelan Legal Profession," 387. In others, jurists or notaries may negotiate or draft contracts.Huyse, 227. Lawyers in some civil law countries traditionally deprecated "transactional law" or "business law" as beneath them. French law firms developed transactional departments only in the 1990s when they started to lose business to international firms based in the United States and the United Kingdom (where solicitors have always done transactional work).Boigeol, "The Rise of Lawyers," 206. Conveyancing Conveyancing is the drafting of the documents necessary for the transfer of real property, such as deeds and mortgages. In some jurisdictions, all real estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists).Abel, England and Wales, 176; Murray, 325; and Pérez-Perdomo, "Venezuelan Legal Profession," 387. Such a monopoly is quite valuable from the lawyer's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed),Abel, England and Wales, 177. and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."Weisbrot, 292. In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 laws. 14 Stamp Act 1804 that was introduced by William Pitt the Younger as a quid pro quo for the raising of fees on the certification of legal professionals such as barristers, solicitors, attorneys and notaries.Brian Abel-Smith and Robert Stevens, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (Cambridge: Harvard University Press, 1967), 23. In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.Weisbrot, 251. In some civil law jurisdictions, real estate transactions are handled by civil law notaries.Arthurs, 125; Huyse, 227; and Schuyt, 201. In England and Wales a special class of legal professional, the Licensed Conveyancer is also allowed to carry out conveyancing services for reward. Carrying out the intent of the deceased In many countries, only lawyers have the legal authority to do drafting of wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.Huyse, 227. In the United States, the estates of the deceased must be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).Ralph Warner & Stephen Elias, Fed Up with the Legal System: What's Wrong & How to Fix It (Berkeley: Nolo Press, 1994), 11. Prosecution and defense of criminal suspects In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world.Hazard, 34-35; Huyse, 227; and Schuyt, 201. In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects. Criminal defense lawyers specialize in the defense of those charged with any crimes. Education The educational prerequisites to becoming a lawyer vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college.Lawrence M. Friedman and Rogelio Pérez-Perdomo, "Latin Legal Cultures in the Age of Globalization," in Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Pérez-Perdomo, 1-19 (Stanford: Stanford University Press, 2003), 6. Law students in those countries pursue a Master or Bachelor of Laws degree. In some countries it is common or even required for students to earn another bachelor's degree at the same time. Nor is the LL.B the sole obstacle; it is often followed by a series of advanced examinations, apprenticeships, and additional coursework at special government institutes.Abel, England and Wales, 45-59; Rokumoto, 165; and Schuyt, 204. In other countries, particularly the United States, law is primarily taught at law schools. In the United StatesWayne L. Anderson and Marilyn J. Headrick, The Legal Profession: Is it for you? (Cincinnati: Thomson Executive Press, 1996), 52-53. and countries following the American model, (such as CanadaAnonymous, "Careers in the legal profession offer a variety of opportunities: While we may not think about it often, the legal system affects us every day," The Telegram, 14 April 2004, D8. with the exception of the province of Quebec) law schools are graduate/professional schools where a bachelor's degree is a prerequisite for admission. Most law schools are part of universities but a few are independent institutions. Law schools in the United States (and some in Canada and elsewhere) award graduating students a J.D. (Juris Doctor/Doctor of Jurisprudence) (as opposed to the Bachelor of Laws) as the practitioner's law degree. However, like other professional doctorates (including the M.D.), the J.D. is not the exact equivalent of the Ph.D., since it does not require the submission of a full dissertation based on original research. Many schools also offer post-doctoral law degrees such as the LL.M (Legum Magister/Master of Laws), or the S.J.D. (Scientiae Juridicae Doctor/Doctor of the Science of Law) for students interested in advancing their knowledge and credentials in a specific area of law. The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses.Olgiati, 345. Others do not, like Venezuela.Pérez-Perdomo, "Venezuelan Legal Profession," 384. A few countries prefer to teach through assigned readings of judicial opinions (the casebook method) followed by intense in-class cross-examination by the professor (the Socratic method).Robert H. Miller, Law School Confidential: A Complete Guide to the Law School Experience, By Students, for Students (New York: St. Martin's Griffin, 2000), 25-27.Anderson, 4-10. Many others have only lectures on highly abstract legal doctrines, which forces young lawyers to figure out how to actually think and write like a lawyer at their first apprenticeship (or job).Friedman and Pérez-Perdomo, 6; Blankenburg, 132; and Olgiati, 345.Sergio Lopez-Ayllon and Hector Fix-Figaro, " 'Faraway, So Close!' The Rule of Law and Legal Change in Mexico: 1970-2000," in Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Pérez-Perdomo, 285-351 (Stanford: Stanford University Press, 2003), 324.Herbert Hausmaninger, "Austrian Legal Education," 43 S. Tex. L. Rev. 387, 388 and 400 (2002). Depending upon the country, a typical class size could range from five students in a seminar to five hundred in a giant lecture room. In the United States, law schools maintain small class sizes, and as such, grant admissions on a more limited and competitive basis.Miller, 42-60. Some students have a preference for full-time law programs,Abel, American Lawyers, 57; Miller, 25; and Murray, 337. while others often work full- or part-time to pay the tuition and fees of their part-time law programs.Falcão, 410.J.S. Gandhi, "Past and Present: A Sociological Portrait of the Indian Legal Profession," in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 369-382 (Berkeley: University of California Press, 1988), 375. Law schools in developing countries share several common problems, such as an overreliance on practicing judges and lawyers who treat teaching as a part-time hobby (and a concomitant scarcity of full-time law professors);Lopez-Ayllon, 324.Eliane Botelho Junqueira, "Brazil: The Road of Conflict Bound for Total Justice," in Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Pérez-Perdomo, 64-107 (Stanford: Stanford University Press, 2003), 89. incompetent faculty with questionable credentials;Junqueira, 89. and textbooks that lag behind the current state of the law by two or three decades.Rogelio Pérez-Perdomo, "Venezuela, 1958-1999: The Legal System in an Impaired Democracy," in Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Perez-Perdomo, 414-478 (Stanford: Stanford University Press, 2003), 459. For example, a 1997 study found that not a single law school in Venezuela had bothered to integrate any part of the Convention on Children's Rights into its curriculum, even though Venezuela had signed the treaty in 1990 and subsequently modified its domestic laws to bring them into compliance. Rather than embark on curriculum reform, Venezuelan law schools now offer special postgraduate courses so that recent graduates can bring their legal knowledge up-to-date with current law.Lopez-Ayllon, 324. Earning the right to practice law :Main articles: Call to the bar and Admission to the bar Some jurisdictions grant a "diploma privilege" to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law.Abel, American Lawyers, 62. Mexico allows anyone with a law degree to practice law.Lopez-Ayllon, 330. However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving a license to practice.Miller, 335-341.Alan A. Paterson, "The Legal Profession in Scotland: An Endangered Species or a Problem Case for Market Theory?" in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 76-122 (Berkeley: University of California Press, 1988), 89. In a handful of U.S. states, one may become an attorney by simply passing the bar examination, without having to attend law school first (though very few people actually become lawyers that way).G. Jeffrey MacDonald, "The self-made lawyer: Not every attorney goes to law school," The Christian Science Monitor, 3 June 2003, 13. Some countries require a formal apprenticeship with an experienced practitioner, while others do not. For example, a few jurisdictions still allow an apprenticeship in place of any kind of formal legal education (though the number of persons who actually become lawyers that way is increasingly rare).Weisbrot, 266. Career structure Abraham Lincoln is a famous example of a lawyer-turned-politician.]] The career structure of lawyers varies widely from one country to the next. Common law/civil law In most common law countries, especially those with fused professions, lawyers have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician.Abel, American Lawyers, 167-175; Abel, England and Wales, 214; Arthurs, 131; Gandhi, 374; and Weisbrot, 277. There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, entrepreneur, or journalist.Anderson, 124-131. In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.Gandhi, 374. In most civil law countries, lawyers generally structure their legal education around their chosen specialty; the boundaries between different types of lawyers are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained. For example, unlike their American counterparts,Although it is common for former American judges to return to private practice, it is highly controversial for them to suggest that they still retain any judicial powers (for example, by wearing judicial robes in advertisements). Brad McElhinny, "Workman criticized for using robe in ad: Group files State Bar complaint about the way former justice seeks clients," Charleston Daily Mail, 3 February 2005, 1A. it is difficult for German judges to leave the bench and become advocates in private practice.Blankenburg, 133. Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are looked down upon by their colleagues who have taken the traditional route to magistracy.Boigeol, "The Rise of Lawyers," 202. In a few civil law countries, such as Sweden,Bernard Michael Ortwein II, "The Swedish Legal System: An Introduction," 13 Ind. Int'l & Comp. L. Rev. 405, 440-445 (2003). the legal profession is not rigorously bifurcated and everyone within it can easily change roles and arenas. Specialization In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door.Olgiati, 353. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.Abel, American Lawyers, 122.Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 50. In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.Herbert M. Kritzer, "The fracturing legal profession: the case of plaintiffs' personal injury lawyers," 8 Int'l J. Legal Prof. 225, 228-231 (2001). Organization Lawyers in private practice generally work in specialized businesses known as law firms,Anderson, 111-117. with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers.Hazard, 39. The United States, with its large number of firms with more than 50 lawyers, is an exception.Junqueira, 92. According to this source, as of 2003, there were 901 law firms with more than 50 lawyers in the United States. The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s. Notably, barristers in England and Wales and some states in Australia do not work in "law firms". Those who offer their services to the general public — as opposed to those working "in house" — are required to be self-employed.Gary Slapper and David Kelly, The English Legal System, 7th ed. (London: Cavendish Publishing Ltd., 2004), 550. Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialised chambers this is commonplace. Professional associations and regulation Mandatory licensing and membership in professional organizations In some jurisdictions, either the judiciaryWeisbrot, 264. or the Ministry of JusticeJohnsen, 86. directly supervises the admission, licensing, and regulation of lawyers. Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all lawyers must belong to.Boigeol, “The French Bar,” 271; and Junqueira, 89. In the U.S., such associations are known as mandatory, integrated, or unified bar associations. In the Commonwealth of Nations, similar organizations are known as Inns of Court, bar councils or law societies.Abel, England and Wales, 127 and 243-249; Arthurs, 135; and Weisbrot, 279. In civil law countries, comparable organizations are known as Orders of Advocates,Bastard, 295; and Falcão, 401. Chambers of Advocates,Blankenburg, 139. Colleges of Advocates,Jene, 370. Faculties of Advocates,Paterson, 79. or similar names. Generally, a nonmember caught practicing law may be liable for the crime of unauthorized practice of law.Arthurs, 143. In common law countries with divided legal professions, barristers traditionally belong to the bar council (or an Inn of Court) and solicitors belong to the law society. In the English-speaking world, the largest mandatory professional association of lawyers is the State Bar of California, with 200,000 members. Some countries admit and regulate lawyers at the national level, so that a lawyer, once licensed, can argue cases in any court in the land. This is common in small countries like New Zealand, Japan, and Belgium.Murray, 339; Rokumoto, 163; and Schuyt, 207. Others, especially those with federal governments, tend to regulate lawyers at the state or provincial level; this is the case in the United States,Abel, American Lawyers, 116. Canada,Arthurs, 139. Australia,Weisbrot, 244. and Switzerland,Bastard, 299. to name a few. Brazil is the most well-known federal government that regulates lawyers at the national level.Falcão, 404. In Germany, lawyers are admitted to a bar on a regional level, but may appear for clients before all courts, except for the Federal Court of Justice of Germany in civil cases. Some countries, like Italy, regulate lawyers at the regional level,Olgiati, 343. and a few, like Belgium, even regulate them at the local level (that is, they are licensed and regulated by the local equivalent of bar associations but can advocate in courts nationwide).Huyse, 239. Such geographic limitations can be troublesome for a lawyer who discovers that his client's cause requires him to litigate in a court beyond the normal geographic scope of his license. Although most courts have special pro hac vice rules for such occasions, the lawyer will still have to deal with a different set of professional responsibility rules, as well as the possibility of other differences in substantive and procedural law. Some countries grant licenses to non-resident lawyers, who may then appear regularly on behalf of foreign clients. Others require all lawyers to live in the jurisdiction or to even hold national citizenship as a prerequisite for receiving a license to practice. For example, the Supreme Court of Canada struck down a citizenship requirement on equality rights grounds in 1989,Andrews v. Law Society of British Columbia, 1989 1 S.C.R. 143. and similarly, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively.Abel, American Lawyers, 68. Who regulates lawyers A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession), or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch. In most civil law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, lawyers were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought.Abel, Civil Law World, 10; Johnsen, 70; Olgiati, 339; and Rokumoto, 161. Even in civil law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a lawyer's fitness to practice after a lawyer has been expelled from the Advocates' Association.Johnsen, 86. Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.Falcão, 423.Maria da Gloria Bonelli, "Lawyers' Associations and the Brazilian State, 1843-1997," 28 Law & Soc. Inquiry 1045, 1065 (2003). Of all the civil law countries, Communist countries historically went the farthest towards total state control, with all Communist lawyers forced to practice in collectives by the mid-1950s.Kandis Scott, "Decollectivization and Democracy: Current Law Practice in Romania," 36 Geo. Wash. Int'l L. Rev. 817, 820. (2004).Timothy J. Tyler, "Judging the Past: Germany's Post-Unification Lawyers' Admissions Review Law," 29 Tex. Int'l L.J. 457, 472 (1994). In contrast, common law lawyers have traditionally regulated themselves through institutions where the influence of non-lawyers, if any, was weak and indirect (despite nominal state control).Abel, American Lawyers, 142-143; Abel, England and Wales, 29; and Arthurs, 148. Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of lawyers to zealously and competently advocate their clients' causes in the adversarial system of justice.Arthurs, 138; and Weisbrot, 281. However, the concept of the self-regulating profession has been criticized as a sham which serves to legitimize the professional monopoly while protecting the profession from public scrutiny.Abel, American Lawyers, 246-247. Disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent.Abel, American Lawyers, 147; Abel, England and Wales, 135 and 250; Arthurs, 146; Paterson, 104; and Weisbrot, 284.Richard L. Abel, English Lawyers Between Market and State: The Politics of Professionalism (New York: Oxford University Press, 2003), 374-375.William T. Gallagher, "Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar," 22 Pepp. L. Rev. 485, 490-491 (1995). Voluntary associations of lawyers Lawyers are always free to form voluntary associations of their own, apart from any licensing or mandatory membership that may be required by the laws of their jurisdiction. Like their mandatory counterparts, such organizations may exist at all geographic levels.Abel, England and Wales, 132-133.Lopez-Ayllon, 330. In American English, such associations are known as voluntary bar associations.Arthurs, 141. The largest voluntary professional association of lawyers in the English-speaking world is the American Bar Association. In some countries, like France and Italy, lawyers have also formed trade unions.Boigeol, “The French Bar,” 274; and Olgiati, 344. Criticism of lawyers Hostility towards the legal profession is a widespread phenomenon. The legal profession was abolished in Prussia in 1780 and in France in 1789, though both countries eventually realized that their judicial systems could not function efficiently without lawyers.Blankenburg, 126; and Boigeol, “The French Bar,” 272. Complaints about too many lawyers were common in both England and the United States in the 1840sAbel, England and Wales, 37.Gerald W. Gawalt, "Sources of Anti-Lawyer Sentiment in Massachusetts, 1740-1840," in Essays in Nineteenth-Century American Legal History, ed. Wythe Holt, 624-648 (Westport, CT: Greenwood Press, 1976), 624-625. According to this source, the strong anti-lawyer sentiment of the period was rather ironic, since lawyers were actually so scarce in the American colonies that a 1715 Massachusetts law forbade litigants from retaining two lawyers because of the risk of depriving one's opponent of counsel. Germany in the 1910s,Blankenburg, 127. and in Australia,Weisbrot, 246. Canada,Arthurs, 128. the United States,Marc Galanter, "Predators and Parasites: Lawyer-Bashing and Civil Justice, " 28 Ga. L. Rev. 633, 644-648 (1994).Stephen D. Easton, "Fewer Lawyers? Try Getting Your Day in Court," Wall Street Journal, 27 November 1984, 1. This article rebuts the common complaint of too many lawyers in the U.S. by pointing out that it is virtually impossible for a plaintiff to prevail in the vast majority of countries with less lawyers, like Japan, because there are simply not enough lawyers or judges to go around. Even wrongful death cases with clear evidence of fault can drag on for decades in Japan. Thus, any reduction in the number of lawyers would result in reduced enforcement of individual rights.Gerry Spence, With Justice For None: Destroying An American Myth (New York: Times Books, 1989), 27-40 and ScotlandPaterson, 76. in the 1980s. Public distrust of lawyers reached record heights in the United States after the Watergate scandal.Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976), 301. In the aftermath of Watergate, legal self-help books became popular among those who wished to solve their legal problems without having to deal with lawyers.For examples of legal self-help books written by lawyers which concede that the profession has a bad image, see Mark H. McCormack, The Terrible Truth About Lawyers (New York: Beech Tree Books, 1987), 11; Kenneth Menendez, Taming the Lawyers (Santa Monica, CA, Merritt Publishing, 1996), 2; and Stuart Kahan and Robert M. Cavallo, Do I Really Need A Lawyer? (Radnor, PA: Chilton Book Company, 1979), 2. Lawyer jokes (already a perennial favorite) also soared in popularity in English-speaking North America as a result of Watergate.Gayle White, "So, a lawyer, a skunk and a catfish walk into a bar...: No shortage of jokes," National Post, 27 May 2006, FW8. In 1989, American legal self-help publisher Nolo Press published a 171-page compilation of negative anecdotes about lawyers from throughout human history.Andrew Roth & Jonathan Roth, Devil's Advocates: The Unnatural History of Lawyers (Berkeley: Nolo Press, 1989), ix. A 2004 comparative study examined the various legal professions around the world and noted a "remarkable consistency" in complaints about lawyers that transcends both time and locale.Hazard, 60. The authors then generalized the most common complaints about lawyers as follows: Compensation Lawyers are paid for their work in a variety of ways. In private practice, they may work for an hourly fee according to a billable hour structure,Anderson, 111-112. a contingency feeHerbert M. Kritzer, Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States (Stanford: Stanford University Press, 2004), 258-259. According to this source, contingency fees (or de facto equivalents) are allowed, as of 2004, in Canada, England, Scotland, Northern Ireland, Ireland, New Zealand, Australia, the Dominican Republic, Greece, France, Brazil, Japan, and, of course, the United States. (usually in cases involving personal injury), or a lump sum payment if the matter is straightforward. Normally, most lawyers negotiate a written fee agreement up front and may require a non-refundable retainer in advance. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs; the United States is the major exception,See Fleischmann Distilling Corp. v. Maier Brewing Co., (reviewing history of the American Rule). although in turn, its legislators have carved out many exceptions to the so-called "American Rule" of no fee shifting. Lawyers working directly on the payroll of governments, nonprofits, and corporations usually earn a regular annual salary.Anderson, 120-121. In many countries, with the notable exception of Germany,Matthias Kilian and Francis Regan, "Legal expenses insurance and legal aid—two sides of the same coin? The experience from Germany and Sweden," 11 Int'l J. Legal Prof. 233, 239 (2004). According to this article, pro bono arrangements are illegal in Germany. lawyers can also volunteer their labor in the service of worthy causes through an arrangement called pro bono (for the common good).Abel, American Lawyers, 129-130. Traditionally such work was performed on behalf of the poor, but in some countries it has now expanded to many other causes like the natural environment. In some countries, there are legal aid lawyers who specialize in providing legal services to the indigent.Abel, American Lawyers, 133.Arthurs, 161; Murray, 342; Pérez-Perdomo, 392; Schuyt, 211; and Weisbrot, 288. France and Spain even have formal fee structures by which lawyers are compensated by the government for legal aid cases on a per-case basis.Boigeol, “The French Bar,” 280; and Jene, 376. A similar system, though not as extensive or generous, operates in Australia as well as South Africa. In other countries, legal aid specialists are practically nonexistent. This may be because non-lawyers are allowed to provide such services; in both Italy and Belgium, trade unions and political parties provide what can be characterized as legal aid services.Olgiati, 354, and Huyse, 240. Some legal aid in Belgium is also provided by young lawyer apprentices subsidized by local bar associations (known as the pro deo system), as well as consumer protection nonprofit organizations and Public Assistance Agencies subsidized by local governments.Huyse, 240-241. In Germany, mandatory fee structures have enabled widespread implementation of affordable legal expense insurance.Blankenburg, 143. See also *Law enforcement personnel *Law students References See also Lawyer Category:Law enforcement personnel [[Category:Legal personnel Category:Law students Forensic psychology